Bad Places You've Been Before

Electrical contractors are not unique in the problems they confront or the mistakes they make. Your increased exposure, however, comes from the fact that you tend to be one of the first trades on the job at the start of construction and one of the last at the end. As a result, almost any wobble in the course of construction has potential impact on you.

The following is an outline of some recurrent issues, with suggestions on how to confront them. This article is the first of a series, so if you have contributions to the topic, please e-mail them to me.

• You forgot to read the contract. I am regularly asked to review electrical subcontracts. Usually, that request is made after a problem has arisen. And, just as regularly, that contract incorporates the owner/general contractor contract, which my client has never asked for or seen.

Many modern contract forms are difficult to understand, even for a construction industry professional. One automotive manufacturer, for example, uses over 100 pages of general terms and conditions, with cross-references, containing three indemnity clauses and over 50 written “notice” provisions.

Even the relatively balanced, even-handed American Institute of Architects (AIA) forms can be a challenge to understand. Just as an example, the AIA contracts provide that neither party shall be liable for consequential damages, but there is no definition of consequential damages.

Cynicism is not the answer. It is simply not safe to take the position that all contracts are one sided, so it does not matter if you read them.

Break the terms and conditions (Ts and Cs) down by topic. This task is not fascinating, but it can lead to great benefits. For example, list topic headings (delays, extras, differing conditions, submittal/approval procedures, etc.) and under each heading, note the clauses that apply. You will be surprised at what you find. Also, list what records are required to be kept, what scheduling requirements exist and what notice clauses lurk in the Ts and Cs.

• You failed to give written notice. Owners and general contractors complain if you regularly send them written notice letters. But lack of notice is often one of their first lines of defense to a claim. Your argument should be: If the owner/general contractor did not want this type of correspondence, then the notice clauses should not have been included in your contract.

It is a relatively simple matter, at the start of construction, to scan the Ts and Cs and list every clause of a “notice” nature. You will find that some notices must be in writing, some oral, some are due in 21 days, some in 24 hours and some ASAP. Often the amount of time allocated for a notice letter is nonsense, but it is a contract mandate.

In some cases, a bare-bones notice is enough. “Please note we are being delayed by the mason.” In others, details of cost and time are necessary.

Among the most difficult problems with notice is the creeping delay that is caused by interferences from other contractors, late owner-supplied information or materials, a stream of revised drawings, late approvals of shop drawings, etc. For this issue, a periodic review of your schedule can be of great assistance.

• You did not prepare your own schedule. Many contractors, particularly on smaller projects, do not prepare their own progress schedule. The reason may be: “The job is not complicated, so I do not need one.”

Or, on a large project: “Well, the contract has a milestone schedule and that is good enough” or “The schedule is the construction manager’s responsibility, and it will just cost me money.”

Did I say “the reason?” No, that’s wrong. It is an excuse, and it is not a wise one.

Whether you use a simple bar chart or some form of Critical Path Method (CPM), the schedule tests the reasonableness of the contract time allotted for construction. Schedules also help you track the progress of the work and so act as a tickler file when the progress is altered. (Remember written notices?)

It is also not uncommon for a general contractor or construction manager to develop a CPM that is impossible for you to follow. In one such case, the CPM showed concrete pours before the installation of electrical embedded items.

• You do not want to do all the paperwork. Here is a checklist of the most necessary records:

• Daily reports, which code labor at least to the main items of work (cable, cable tray, conduit, wire, etc.). For large projects, also code the labor to areas of the work (e.g., by column line, or by area of the store or school or by floor for a hotel).

• Foreman’s logs, which give your supervisor space to write down notes on each day’s events. Logs can be invaluable for demonstrating later why you are asking for time or money. But be careful of what your foreman writes!

• Extra work order (EWO) forms should be at the site. Too often, changes and extras are ordered verbally and later it may be hard to remember all those instructions.

• Requests for information (RFI) forms are also useful. They can be used to note clarifications needed in the drawings, to give notice of when owner-supplied materials are due, and for a variety of other nonconfrontational questions.

• Change order worksheets can prove valuable. One form of such a worksheet may list a wide variety of cost elements, from labor and materials to rented equipment, storage fees, standby costs, etc. The worksheet is a nice cross-check when you are pricing out change orders, and the added detail may make your change order proposal more palatable to the owner or general contractor.

Even the best planning and follow up is not a complete guarantee to preventing or limiting problems on a construction project. However, if you can avoid the mistakes discussed here, you can prevent nasty surprises. EC

ITTIG, of Ittig & Ittig, P.C., in Washington D.C., specializes in construction law. He can be contacted at 202.387.5508, e-mail: USBuildlaw@aol.com, or his Web site, www.ittig-ittig.com.